Ballantyne v Bonel Limited [1993] QIRC 13 (1993) 142 QGIG 299

298 QUEENSLAND GOVERNMENT IND USTRIAL GAZETTE [ 5 March, 1993 5 March, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 299 ######################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relauom Act 1990- 19 91 s. I I. I I - application for reinstatement Trevo r Ballant yne AND Bond Limited (No. IJ608 of 199:! } C OMMISSIONER NUT TER I F ehruary 1993 Tennination of Employmen t - Di smissa l - R~instatoment - Prd im in ary Issue - Ex'ton sio n o f T ime - T ime Limits - Delay - App li ca ti on Pursuant to Secti o n 11 of Act - Reforence to Case law - Ev idence - Chron ology ,,f E wnts - Special Circumst:mces Ex ist - Application for Extens ion of Time Granted. DECISION This appli cat ion seeks an e xtens ion of tim~ in which to bri ng an ap plica tion under section 1 1 of th~ Act for the reinstatemen t or re- emp loy ment of an emplo yee . A preliminary point was rai sed o n h•half of the applicant that the Co mmissi o n should proce.:d with the matter unde r s.1 1.37 (I) and s l 1. 38 of the Industrial Relouons Amendment Act 199:! as that Ac t came into operation o n 7 December 199 2. The Comm iss io n ni lcd that the. maller sho uld he pmceeded under s. 1 1 of the Act in existence pri,>r to 7 Dec.:mhcr 1992. A fu 1th tr point was rais ed wh i..: h is 11<>t no w neccss:1ry h> de tl..! n11ine ln view of my d~cis1on. The s it u:1tion relating to this matter is a~ follows:- The applicant was d ismiss ed as manage r of the C(>mpany's retail sh owroom on 29 Oct o b<:r 1992. H~ had been em pl oyed by the Com pany since April 1988. The appl ican t wa.,; ad vis ~d that he had ups~t custom~rs but wa.~ given no furth er deta ile d i nfonnati o n. On 2 Nowmher he sough t infonnat ion from the Ind ustrial lnspe..: tors' OITice :cs 10 hi s p ay e111 i tk m c11t s. On 3 or 4 Di: C\! mbt.! r h i.! rieci:ivl!d pay1nc" 11t of Cl!r1 a in en ti tlement s from h is previous empl oye r. AJ1er receipt of the nionc y he rctu med to the Industrial Inspector's Ollice to query the payment. lie also indicated that he believed he had received a roug h dea l in the way he had b ee n te m1i11ated and that the co mpany had done the wrong thing by him . Some infonnation re pay ment was g iven to him but the o ffice r :11 the Industrial lnsp ect<>rs ' Ofli ,·e said he would discus s the mailer wi th the Ind ustrial Inspec tor and advise . The In dus tria l Inspectors' Olli e<' ad vised 0 11 5 No wmber that he was not ent itled to an y "d ditional pavm~nl. On Wednesday 18 Novemher in d iscussions wi th :, friend the :1p pl icant was ad,·isc d that an :iction could l•< brought for wrnngful dismi ~s al. On 20 November the np pli~a nt tck phoned the Indus tr ial Inspector but he was un ava ila bk due 10 mov ing oilice s. An :lp poi ntm~n t wa_i.: mad ~ to ~et.~ th~ lndust ri~,I lnspcct 1.Jr ( \ll Mo nd ay 23 No ve mb e r. On 23 November the Industrial Inspec tor ad vis~d ,,I' the mechan ism for maki ng an appli c,11 i,m for rci nst.1tem e 111 but s tated that t he time had expired and he could not assist the app licant forthe r. The appl icant then contacted his soli ci tor and this culminated in an app lication be ing lodged on 26 November, some 8 calendar day s after the 2 1 day limit. In considering this matter I have had regard to the fact that during the period after the app licant's dismissal he had e )( pressed concern owr the action to the Industrial Inspector's office and could h ave expected to he ad vised of the proce dure lo seek reinstatement. II has bee n ind icated that he wa.s no t provided with this advice even though in an exh i ll it provided to the Commission it is sta ted that this wou ld be th~ 11<>nn al proc edure to be followed. In the ahsence o f direct evidence to the contrary I must give the benefit of douh1 to t he applicant. In addition. the applicant on being advised that there was an avenue a vailable to se ek reinsta tement (although not advised at that time of any time limit) moved ex p ed itiously to have an application lodged . During the hear ing o f the application I was referred to a number of decisio ns in matters of th is nature. On e of particular rele vance was Ulowski v M iller 1968. Federal Cou,1 o f South Auslrolia S. A.S. R. 277. In th at decisio n Bray C.J. said " It must be remembe red that we arc dealin g he re with a d is~ret il)n and in my vie w it ought not to be f~tt cr,.,d hy an :,, abso l ut<' w inflex ible rules. It clearly appears from t h< s~ cas<~ tha t fi v~ paramount matters to be considered are t he k ngth of the d el ay. the ex planat ion for the dela y. the hardship to the plaint i ff ir the action is d ismi$sed and the cause of the action kfl sta tut e bam:d. the prejudice t,l the defendant if the acti on is allo wed to proceed notw ith standing the delay. and the condu ct of the dd'e ndant in th e litigat io n. " Applying these principl~s to th is case: (I) The length of the delay was minimal (8 calendar days) (2) T he delay was caus•d as a result of infonnation allegedly not be ing given by the Industrial Inspectors' Office to the applic ant in a sit uation where he could reasonably have cxp~ctt'd to r~ceivtt th~ infom1nti on . (3) Th~re i, h ardship o n the resp,, 11de11t if he is 1101 given the opp nr1uni1y to arg u< hi ~ ..; .-sl! . (4) Th~ additiona l days h ave n,ll prejudiced the appl icant. It ..: ~11.a inl~· w.1 :.-: 1h>l .:1rg u ~d tha l thi:s wa~ the case. (:i ) Th< .ippl ieant ha, attempud I<) furth er th e mailer lo the best o f his ahil ity. I a m of the view that in this c ase special circumstances ~xist :md th e app lication fo r an ex1ension of tim~ is granted . The Co 111111 issi()n orders acco rdingly. 8.J. NUTTER, Commiss ion er. Appearances :- Mr R Co oke of Blak.-. Dawson and Waldron Sol icit ors for the A pplica111. Mr M l:k ll idd o f th e f\k tal Trades lndu~try Assoc iati on o f Austral ia, Queensl and Bra nd,. U 111 on of Ernpl<•y~rs for Bone! Lim ited. Operat iw D:ttc: N i t\ D\'.! cis io n - Exkn::-ion ") r Tim.: Grant .:d - R \!i nstatement Re leru«d: I it Fd,rnary I 993 -- 1 of 1 --